Revise Law to Combat Terrorism While Safeguarding Basic Rights

While India has a responsibility to protect citizens from terror attacks, the counterterrorism law has long been abused to detain suspects for excessive periods, file charges on fabricated evidence, and ban organizations without due process of law. These amendments will make the law an even more dangerous tool in the hands of officials who seek to oppress peaceful critics and minority communities.

Meenakshi Ganguly, South Asia director

(New York) – The Indian parliament should reject proposed amendments to India’s counterterrorism act that could lead to further misuse of the draconian law, Human Rights Watch said today. Parliament should call on the government to withdraw the amendments to the Unlawful Activities (Prevention) Act 1967 (UAPA), which is scheduled for a vote in India’s upper house, the Rajya Sabha, on December 17, 2012.

On November 30, the lower house of the Indian parliament passed the amendments to the UAPA, India’s principal federal counterterrorism law, without significant input or scrutiny from the general public or civil society organizations. The amendments would allow the government broad leeway to increase bans on proscribed organizations to five years and widen the definition of a person to any association of individuals.

“While India has a responsibility to protect citizens from terror attacks, the counterterrorism law has long been abused to detain suspects for excessive periods, file charges on fabricated evidence, and ban organizations without due process of law,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “These amendments will make the law an even more dangerous tool in the hands of officials who seek to oppress peaceful critics and minority communities.”

The UAPA and counterterrorism laws preceding it have been widely misused to target political opponents, tribal groups, religious and ethnic minorities, and Dalits, Human Rights Watch said. For instance, state police have used the UAPA bans on groups to round up the same suspects after every terrorist attack simply because they had been previously charged – but not convicted – of membership in an unlawful organization.

The proposed amendments expand the definition of the “person” who can be charged under the law to include “an association of persons or a body of individuals, whether incorporated or not.” Human Rights Watch expressed concern that this would allow the police to charge an individual merely on the grounds of contact with a suspect.

The amendment increasing the period for which an association can be declared as unlawful from two years to five years will allow the authorities to ban for a longer period an organization it opposes, even though the organization has not been found unlawful by a court.

“Extending the ban on groups from two to five years without a court determination is a recipe for abuse,” Ganguly said. “The police and investigating agencies could arrest people for being part of a banned organization even though a court never found it to be involved in terrorism.”

The amendments also expand the definition of “terrorist act” to include acts that threaten the economic security of India and damage its monetary stability by production, smuggling, or circulation of “high quality” counterfeit currency. These crimes are not recognized terrorism offenses and are already covered by the Indian Penal Code. Including them under a more stringent counterterrorism law seems intended to make obtaining bail more difficult and to allow for a longer pre-charge detention period, Human Rights Watch said.

The bill would also enlarge the scope of punishment for raising funds to commit a terrorist act or for the benefit of terrorists irrespective of whether they have actually been used to commit a terrorist act. As long as one had knowledge that “such funds are likely to be used, in full or in part by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act,” that person is culpable.
When opposition members called for a more thorough discussion of the amendments, India’s home minister, Sushil Kumar Shinde, told parliament that the government would never allow the misuse of the law and that the amendments would bring clarity to the exiting framework and remove deficiencies.
“The government’s claim that the law won’t be misused disregards the recent history of abuse of counterterror laws that have left suspects languishing in jail for years before being acquitted for lack of evidence,” Ganguly said. “Bad laws not only violate international human rights standards, but are counterproductive because abuses are used as a recruiting tool by extremist groups.”

In 2008, following an attack in Mumbai, the government amended the UAPA by borrowing from earlier counterterrorism legislation that had been allowed to lapse or been repealed because they had led to serious rights violations. These laws ­– the Terrorist and Disruptive Activities (Prevention) Act 1985 (TADA) and the Prevention of Terrorism Act 2002 (POTA) – had enabled serious human rights violations by government forces during counterterrorism operations.

The 2008 UAPA amendments also increased the risk of arbitrary detention, custodial abuse, and violation of basic due process rights by allowing courts to double the maximum period of

detention without charge for terrorism suspects. A judge can now extend pre-charge detention from the 90 days allowed under the Indian criminal code to 180 days upon a vaguely defined special request from a prosecutor. The law also doubles the maximum period of police custody from the 15 days allowed under the Indian criminal code to 30 days.

Following the passage of amendments in 2008, Human Rights Watch wrote a detailed report discussing the problematic provisions and offering recommendations to the Indian government to prevent abuses. Human Rights Watch called on the Indian government to revise the definition of terrorism and ensure that restrictions on organizations respect the right to freedom of association under international law. Human Rights Watch also urged the repeal of provisions such as those authorizing pre-charge detention for up to 180 days, limitations on bail, presumption of guilt in certain circumstances, and overly broad search, seizure, and arrest.

“It is sad that efforts by civil society groups to repeal or amend abusive laws such as the Armed Forces Special Powers Act get ignored by the government,” said Ganguly. “Yet, when it comes to enacting new laws likely to cause further abuse, the government forces them through without any serious public discussion, at the expense of due process, justice, and India’s global image.”